VVPAT Verification | Day 1: Paper-trails are essential to protect voters’ right to know, argue petitioners
VVPATs for Voter VerificationJudges: Sanjiv Khanna J, Dipankar Datta J
Today, two days before Phase I of the 2024 General Elections, a Division Bench comprising Justices Sanjiv Khanna and Dipankar Datta heard a batch of petitions seeking 100 percent cross-verification of votes polled in Electronic Voting Machines (EVMs) with Voter Verifiable Paper Audit Trail (VVPAT). The lead petitioner in the case is Association for Democratic Reforms (ADR), a transparency right activist group.
The VVPAT machine is connected to an EVM, providing a paper record with serial number of the vote cast. It also records the name and party symbol of the candidate for whom the vote is cast. This aims to ensure transparency for the voter in an otherwise close-ended voting system. When a vote is cast on the EVM, the VVPAT machine records the details and displays it for seven seconds, making it possible for the voter to verify it. After this, the paper slip is printed and dropped into a sealed box. In case any dispute or discrepancy arises, the VVPAT slip is used to cross-check the votes cast.
Currently, VVPAT verification is mandatory in five randomly selected polling stations in a constituency. ADR, who was also the lead petitioner in the recent Electoral Bond case, argued that the current system is insufficient in enforcing a voter’s right to know and fails to protect the transparency of elections.
Advocate Prasanth Bhushan appearing for ADR argued that according to the Court’s judgement in Subramanian Swamy v Union of India (2013), the VVPAT paper trails were an essential part of the election process. Senior Advocate Gopal Sankaranarayanan appearing for another petitioner argued that the VVPAT paper trail was necessary to exercise a voter’s right to information. Other counsel on the petitioner’s side included Senior Advocates Anand Grover, Sanjay Hegde and Huzefa Ahmadi and Advocate Nizam Pasha.
Bring back the paper ballots
Bhushan argued briefly before the Bench broke for lunch. He submitted that as per the existing framework, only two percent of the VVPAT slips are counted for verification across all constituencies and this was insufficient.
In order to address the issue, Bhushan offered three solutions. Firstly, he suggested that paper ballots should be brought back, as votes recorded on EVM’s could not be trusted. To buttress his argument, he offered examples of European countries such as Germany which had migrated back to paper ballots. The Bench however, resisted this suggestion. “We are in our 60’s. We all know what happened when there were ballot papers. You may have, but we have not forgotten,” Justice Khanna remarked. Justice Khanna also stated that machines without human intervention can ensure accurate information.
At a later stage of the hearings, Justice Datta also pointed to the fact that Germany could not be used as a barometer of comparison with India because of the huge difference in population between the two countries. “My home state West Bengal has more population than Germany…we need to repose some trust and faith in somebody. Do not try to bring down the system like this,” he said.
Bhushan also claimed that most citizens did not trust the EVMs. When Justice Datta asked what his source was, he responded that it was a private poll. The Bench was quick to dismiss this submission. “Let’s not believe in these private polls,” Justice Datta said.
Bhushan’s second solution to increase transparency was to establish a system where voters could physically access the printed VVPAT paper slip and place it in the sealed box themselves.
Lastly, Bhushan pointed out that prior to 2017, the VVPAT had a transparent box. But since then, the box has been made opaque. Therefore, he suggested that the box be made transparent, so that the voters could see that their vote was being recorded.
Voter’s confidence is crucial
During his arguments, Sankaranarayanan clarified that he was not presuming any malice on the part of the ECI. “We are not attributing any malice. The only issue here is the confidence of the voter in the vote he has cast,” he explained. Bench opined that this would increase the burden on the ECI to which Sankaranarayanan pointed out that as per the affidavit of the ECI the process would take only 12 days.
He echoed Bhushan’s ask to allow voters the right to receive and then place their VVPAT slips in the box. He said that this would increase the voter’s interaction with the ballot and boost his confidence. He suggested that this was the most practical solution at the moment, considering that the 2024 General Elections are about to commence.
Sankaranarayanan also referred to a report by BloombergQuint after the 2019 General Elections which claimed to find discrepancies in the data of 373 constituencies. Justice Khanna remarked that if such a discrepancy existed, the candidates would be aware of it. “If this was true, the candidates would have immediately challenged it,” Justice Khanna said. Sankaranarayanan informed the court that these discrepancies were accepted by a parliamentary committee but the ECI was yet to offer an adequate response on the matter. He also submitted that whether the candidates approached the Court was irrelevant. What was important, was a voter’s right to know.
Further, Sankaranarayanan submitted that under the existing rules, whoever alleges discrepancy would be held criminally liable, if the allegation is proved to be wrong. This, he argued, had to be changed, as an average voter did not gain anything by making a false claim.
Bench: What is the punishment for malpractice?
The Bench spent a significant portion of the hearing questioning the ECI on the process of polling and verification. Justice Khanna enquired on the storage facilities of the VVPAT machines, the data collection processes, software updates and malfunctioning machines. The Bench also checked if the VVPATs were printed on thermal paper, and the ECI answered in affirmative. The ECI informed the Bench that unless a candidate raised concerns, no cross-checking exercises were done post polling.
The Bench enquired what the punishment was for tampering with EVMs. The ECI responded that there was a procedure established in case of “breach of office” under Section 134 of the Representation of the People Act, 1950. The Court however, noted that they were not concerned with the procedural aspects under Section 134. They were enquiring if specific provisions of punishment existed in case of manipulation of the EVMs. “That is a serious thing. There should be a fear that if something wrong is done then there will be punishment,” Justice Khanna said.
After hearing brief submissions from Senior Advocates Anand Grover, Sanjay Hegde and Huzefa Ahmadi and advocate Nizam Pasha on the petitioners’ side, the Bench concluded hearing for the day. The case will be heard again on Thursday, 18 April 2024.